Berger Transfer and Storage, Inc.

IiR(GER TRANSFER AND S()RA(;I'. INC. Berger Transfer and Storage, Inc. and Truck Driv- ers, Oil Drivers, Filling and Platform Workers Union, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 13-CA-18752 October 9. 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANt) M MHIRS JENKINS AND) P.NL:t.tO On June 20, 1980, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Deci- sion in this proceeding. Thereafter, counsel for Re- spondent filed exceptions and a supporting brief, and counsel for the General Counsel filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 2 i Respondent has exceptld Il certailn credibilil) findings made hby tilt Admiinstrativ Lawa Judge and also alleges hat he exhlhitrt hias l ir ard Respondenl It is the tBoards cstiahlshed policy Inot to ove rrale 1 a ldnill- istralive law udge's resolutions ith respect credihility tinless the clear preponderance of all of the rlevanl evidence con incus us hat the resollutions are incorrect. Standard Dry Wall Productr. Inc.. 91 NRB 544 11950()). end 188 F2d 32 (3d Cr 1951). We hale carfully examined the record and find no hasis for resersing his findings Respondent also has excepted to the Administrativ Ilaw Judge's fail- ure Io explicate reasons for crediting the testimony of `itnerses for the Cieneral Counsel In circumstances where there is ciflicting telinion in the record In the instanlt case, the Administratlse l.a Judge found. based ol admitted documrlentary and testlimonial esidtlenc ad uncoitral- dicted testimony, that Respondent engaged in a widespread antiunion campaign replete with unlawful threats promises, layoffs, and discharges in order to defeat the Union's organizing campaign, and that it refus(d to recognize and hargain with the Union as the dlesignated collcctixc har- gaining rpresentative of its dri.ers ad alrehoillsmen Moreos.r, ihe credihility findings attacked are inherently consistelni with his unlcolnro- serted findings, including his crediting of employee (ioeha i oer ()per- ations Manager Harris. In short, Administratise l.av Judge Malloney's credihility findings under attack aru basel on falctors other tlhan denlea- nor Further, in consonance with the Board's policy set forth in Stnlndird Dry Wall Product, Inc. supra, we hasle independen ll xaminel the record in his case, and we find no basis on the record in hls proceediig for reversing his credibility determinatilons or his findings of act hsed thereon We also find totally without merit Respondent's allegations of hias and prejudice on the part f the Administralise Law Judge Upon full consid- eration of the record, we percei've no esidence that the Administratil Law Judge prejudged he ae. made prejudicial rulings, allowed mprop- er evidence nto the record, or demonstrated ai hias againlt Respondent il his analysis or discussion of the es idence 2 In accordance with his dissent In Oil'mpi .edial (orprarn, 250 NLRB 146 (1980), Member Jenkins would award interest on the hackpays due based on the filrmula set forth Iherein ORDER Pursuant to Section 10(c) of the National Lalbor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent. Berger Trans- fer and Storage, Inc.. lomhard, Illinois, its officers, agents, successors, and assigns. shall take the action set forth in the said recommended Order. DLCISI()N S I I' MtNI t lI 1111 CASIE W.\l I.R I. MAIONI.x, JR., Adminislrati e L;aw Judge: This case came on for hearing before me at Chi- cago, Illinois. upon an unfair labor practice complaint,l issued by the Regional Director for Region 13 and later amended, which alleges that Respondent Berger Transfer and Storage, Inc.,: violated Section 8(a)(1), (3). aid (5) of the Act. More particularl, the amended complaint al- leges that Respondent engaged in numerous acts of coer- cive interrogation of its employees concerning their union activities, solicited grievances from employees ,with an implied promise of granting redress, threatened to reduce their workload and job availability in reprisal for union activity, threatened to discharge employees for engaging in union activities, committed assaults h auto- mnobile upon pickets, created among employees the im- pression that their utitot acti, ities ere the sub ject of company surveillance, threatened to close the warehouse because of union acti ities among employees, ad asked employees to dissuade other employees from supporting the Union. The amended complaint also alleges that Re- spondent laid off employ ces on May 21 and May 22 and discharged 33 employees on May 23 because of their union activities and that it demoted employee Jerry Gocha from the position of leadman to the position of employee because of his union actiities. It also alleges that Respondent unla,fully refused to bargainl ith the Union as the representative of its drivers and ,[arehouse- men and seeks a so-called Gixsel remedy. : Respondent denies the commission of indepeidenit o- lations of Section 8(a)(l), denies thal any layoffs took place on May 21 and 22, asserts that the discharges Ihc prinllcipal docket ent ries htrcin ar' as follows ( hirge filled aIaic Rcispondent b Tru , hy I)ri k er. il )rnrs, till rig Slation lland Pilitrtl 'inu lksc t ,,,.. 1-ion , .1 'I.tl Internattl:ial lirlother hoiod f caT;it r. Chiallftl'ur, Wiarehousemeln aind Htelprs if Ailcr.il herein cal led the Union), i t May 24. 1979; comnlplaint isued against R' ,porldenl h) the Rgional Director for Rgion I oll Junle 2i), 179 R- ,ponrnlii', an,u Ir filed July I). 1 97q9 hearing held in Chicago. Ill nins, i1 Febhruary 4 hrouqh 7, 1981; and rief' filed i Ii mc h the (itiical Counsel and Respondent on or hbforr M arch 27, 198) Respolldent admits, lnrd I Find. that it is a Mlnniesota orporatlloll w hich maintains a place of husilness at .ombahrd. lIIIh is. s here it is nI gaged i the transfer and storage of household and conimmercril goods During the preceding year. Responduent derlied gross rserlnues in xcess of $50.(XX) from hr ahrose-ldccribed husiness finr tie ransp rltiolln of gol.ds, from Illinlis to poilltIl and places ioultside thy Stale of Illnis Acc- cordingl. Resplndci illt al rnl 'Cil rC ungagd i conlllnerce sililll tle mneanniig of Sec 221. (i) ad (7 of the Act I h t[ i s la ihor rgan- zation 'lii thn h Ill Inllnng S, 2t5) o t A : A L. R s (i.' Pat-m ('.. /Ic 9 L 575 It ]t9q 253 NLRB No.2 5 I)tCISI()NS ()OF NATIONA. I AI()BOR RI.ATI()NS BO()ARK) which occurred on May 23 were accomplished by a local plant manager acting withoul authority and that such discharges were rescinded immediately, and asserts that the Union's card majority has not been properly es- tablished and a Gissel order would be inappropriate he- cause the effects of any unfair labor practices committed by Respondent have been sufficiently dissipated to permit the running of an election. It also argues that Gocha was a supervisor who does not enjoy the protec- tions of the Act. Upon these contentions the issues herein were joined. 4 FINDIINGS ol F, Cli I. HIF. UNFAIR I ABOR PKRACTICIS At1 I.l(il:l) Respondent operates a national moving and transfer business and maintains its principal office in Minneapolis, Minnesota. One of its facilities is located in Lombard, Il- linois, a suburb of Chicago. At this warehouse, some- times called the Chicago warehouse, Respondent em- ploys approximately 40 local and over-the-road drivers, warehousemen, and helpers. During the period of time here at issue, Karl Maierhofer was the general manager of the terminal and Mark Harris was operations manager. The warehouse and moving business at Lombard has been in operation for a number of years. It is a nonunion operation, although some of Respondent's other termi- nals have been unionized. On Monday, May 21, at the request of some of Respondent's employees, Union Busi- ness Agents Jerry Rzewnicki and William Dicks came to the Lombard warehouse and began to talk with a number of employees who had gathered in the parking lot prior to clocking in. They discussed with the assem- bled employees the benefits of unionization and asked them if they wanted to join. A number of employees in- dicated their interest so they were furnished with con- ventional dual-purpose authorization cards which they filled out and signed, using the hoods or trunks of cars or other available surfaces to support the cards as they were writing. All cards were signed in the presence of Rzewnicki and Dicks and were returned to one or the other of them. On Wednesday, May 23, Rzewnicki and Dicks returned to the Berger premises at or about the same morning hour and obtained signed authorization cards from employees William A. Moore and Danny Overton, both of whom were absent from work on the previous Monday. On both occasions, these two business representatives obtained signed cards from a total of 28 Berger employees.' 4 Certain errors in the transcript are hereby noted and corrected s During the course of the hearing in this case, solm 13 HBerger em- ployees personally identified their on cards These witncsses ere David Redman, Danny Overton, Larry York, John W. Rose, Frank Gatz, Don Mundt., Mark Eurek, Dennis Busse, William A. Moore, Mi- chael Gunnels, Tony Morasski, Ron Salmons, and Jerry Giocha These or other witnesses testified that they personally saw 1( other named em- ployees on the same occasion fill out ut or sign a designation card in their presence. The card signers so identified by fellow employees are Don York (bthy Larry York and Morawskil, Ben rozoska (by Dennis usse), Phil Roesecke (by Husse, Larry York, and Frank Ciatz), Garry Wallen (by Larry York), Don Smith (by Jerry Gocha), Gerald Stroh (by usse). Allen runke (by Larry York and Morasvski), William McDoniald (hy Morawski), Cameron Duncan (by (Gocha), and homas Hudnik (hy Mor- awski and Giat7) The cards of Terry Most. Fd t:ilet, Kurt KoonI, As discussed in more detail. infJa, there were 42 em- ployees in the agreed bargaining unit on May 23. As of that date, the Union possessed signed cards from a ma- jority of employees, i.e.. 28 out of 42 persons. As Maierhofer and Harris were coming to work on MondaN morning, they both noticed employees in the parking lot talking with Rzewnicki and Dicks. Harris professed unconvincingly that he did not know at first what the employees were doing, although he also ad- milled that he thought they were signing cards. Maier- hofer testified that Harris informed him on May 21 that two employees were giving out cards on the parking lot, that it was rumored that Local 705 was involved in the effort, and that the employees were probably signing cards. One of Harris' principal functions as operations man- ager was to make out the daily assignment sheet. Harris kept a list of about 25 employees, arranged in order of seniority. As more fully discussed later, there were about four or five other employees available to Respondent for assignment, when needed, whose names did not appear on the list and whose names would be handwritten at the bottom by Harris whenever they were assigned work. After assigning particular runs to particular employees. Harris would hand a copy of the list to Warehouse Fore- man Jerry Gocha, whose job was then to see that trucks were loaded and designated drivers were properly dis- patched. A few employees were normally retained at the warehouse throughout the day. Harris testified that, during this period of time, he was making an effort to maximize the employment opportunities available to his men because the summer months were coming and he did not want experienced help leaving the Company to go to work for some other employer. On May 21, Harris posted a list which assigned work to 17 employees. A line was drawn through the middle of the list with an indication that no work was available for those whose names appeared below the list. Employ- ee Ron Salmons testified credibly that, when he saw he had no assignment for the day, he went to Harris and asked the reason, complaining that he was not a part- time employee. Harris replied that, with all the union stuff going on, he was not going to use everyone. Em- ployee David Redman also testified credibly that he overheard a telephone conversation later in the day be- tween Harris and an unknown caller in which Harris stated that he had work for "thirty guys" at the ware- house but, since they wainted to go union, he would work only a minimal amount of labor. About noon on May 21, Maierhofer spoke to ware- house employee Frank Gatz. Maierhofer said he had Jesse Morris, and Guy Anderson ere collectcd hb Rewnicki and Dicks on he same occasion and there is no reason to beliee that they were not also signed by these employees duriig the salne niass signing effort Re- spondent and the General Counsel stipulated that 3 employees were part of an appropriate bargaining unit at the time in question, disputing only the eligibility of card signers Koontz,, Morris, and Gocha, hose inchl- sion would bring the total to 42 ; Respondent claims that a new hire. Scott ictnley, should also hbe in- cluded il anI list f hbairgaininlg unit emplo ees as of the date 1l the nIliton's demand for recognlition As Hernly's Inclusion ould rit atfecl the UInion's mnajority status. it is unnecessary to resolve the qucstllon of his act lnal datie of hire 6 HFR(itR I RANSFIR ANI) SI()RA(il INC' heard that some employees were sigiing union cards and asked Giatz why they there organizing. Gatz replied that sonime of them did not think they had been getting ai fail shake since Hlarris lihad assuned the duties of operations manager. They felt they ould be better off under a union contract. Maierhofer told Gatz that, if there ,xas a union at the warehouse, there would be ess ork ad smaller crews and those at the bottom of the seniority list would lose their jobs. Later on in the daN\ Mailcr- hofer had a conversation in his office with enlploccs Gary Wallen and Dennis Busse. lie asked Wallcit and Busse why the employees ere organizing and wIhal the Company was doing s rong which prompted their action. One of the two employees voiced a complaint about the slow payment of hospilalization benefits. in the course of this consersaltion 'Wallen admitted to Malcer- hofer that he had signed a union card. I credit BIusse's testimony that, on this occasioni, Maierhofer asked hinm it he knew the names of any employees who were interest- ed in bringing the Union into the warehouse and that, during this conversation, Maierhofer had in front of hit a list of employees on which he was making notes. ()n this occasion Maierhofer also told them that lie intended to interview each employee to find out vwhat each em- ployee felt was wrong swsith the Company. On the same afternoon, Harris and James Stang ere present in the drivers' room heln several employees were taking a break. Stanig advertises himself as vice president in charge of sales, although he is not actually a corporate officer but a longtime sales representative of Respondent who solicits business and arranges deliveries for Berger customers in the Chicago area. Harris asked employee Larry York why the employees wanted a union. York replied that they were unhappy because they were not guaranteed a 40-hour week and were often sent home early during a workday. Harris replied that they still would not be guaranteed a 40-hour %week with a union because, if a union came in, he simply would not book any jobs on Morldays and Tuesdays. Stang then asked why the employees were interested in the Union. He remarked that a union had "screwed" some of the employees a couple of years before and wanted to know what they saw in unionizing when they were already making in excess of the union scale. Em- ployee Phil Roesecke gave a reply similar to York's. He said that employees lacked job security in that they did not have the guarantee of a 40-hour week. Stang's reply was similar to Harris', namely that, if a union came in, he would not book jobs on Mondays and Tuesdays. lie per- sisted in asking what a union could do for the employees that Berger could not do, noting that, if they had a prob- lem now, they could take it up directly with Bill Dircks (the Company's president) or Maierhofer. On the following day, Tuesday, May 22, only 16 em- ployees were assigned work. On the list which was posted, a line was drawn which cut off all the nanles on the lower portion of the paper, thereby denoting that about 15 men with low seniority would not work O)n that date, Maierhofer had occasion to talk with employee Gerry Stroh i his office concerning the Union. Maier- hofer asked Stroh why the employees were interested in joining a union. F.arl iil the morning of May 23, Rzewiicki and Dicks again visited the premises of Resp(odent. Rewt'licki met Maierhofer as the latter was coming to work, identified himself arind presented Maierhofer ith a recogniitio agr-eenlntli form which he asked Maierhofer to signi1 The formi in question calls flor more than merely recognition. It stllCes Recognition Agreement -he cImplocr subscribed below hierhcb recogmrizes Local Union No. 705, Interllatioilna l rotherhood of Teamsters a;s the sole and exclusi e bargairling agent on behalf of' its --- -- emplosees. It is understood that this recognition is accorded to 1.ocal No. 7()5 as a result of sho~sing a marjorit, of' signed authorization cards executed by the afore- metntioned bargaining unit. The eriplo)er further agrees that within -- days. the duly author- ized agerit of the Company will execute the stand- ardl agreenienlt noss in full force and effect in indus- try. All provisions respecting rates of pay arid hours of work shall become effective this date - - Rzewiicki also handed Maierhofer the signed authori- zation cards which he had collected. Maierhofer refused to sign the agreement, put the union cards in his pocket, and went inside his office. Two hours later, Maierhofer returned the cards to the Union by replacing them on the dashboard of Dicks' car. As indicated previously, Overton signed his card on the morning of May 22. Shortly after he did so, Harris called him into the office aid asked him what xsas going on. Overton replied that the business agents from Local 705 and the employees were organizing a union. Harris asked Overton if lihe had signed a card and Overton re- plied that he had done so. Harris then asked Overton if the employees ere planning to strike and if Overton himself would also strike. Overton replied that he did not know if there would be a strike, hut, if a strike took place, he would support it. About 8:30 a.m., the Union began to picket the ware- house premises with signs indicating that the strike was for recognition. Most of Respondent's employees hon- ored the picket line and did not work. About 10:30 a.m, Maierhofer and Harris came out to the parking lot and summoned a number of employees to an impromptu meeting on the spot. He told these employees that the picket line was illegal, asked them to come back to work, and told them that, if they did not report to work by I I a.m., they would be terminated and their insurance would be canceled. There is some dispute as to whether he used the word "terminated," "fired," or "replaced." On the basis of credited testimony and because the use of the word "terminated" is consistent with the language Respondent used in a telegram which it sent the same evening to 33 striking employees, I believe that Maier- hofer told the striking employees they would be termi- nated if they did not report for work by the stated time. Shortly after this meeting, the Union changed its picket I)lC.ISI()NS ()F NAFI()NAI I.AII()R R LAJ IONS H()ARI) signs to add the legend that it was picketing to protest unfair labor practices. On May 23, Respondent sent telegrams to all of the employees named in paragraph IX(b) of the complaint. Each telegram read as fllows: We are asking you to report lo work at our tcrini- nal 2N225 GCrace Street, I .omhard, Illinois at 8 am lhurisd(ay May 24, 1)7'). 11f ou do not report, we will take this to meall that you have volunlarily tr- minatled your employment with IBerger ransfer and Storage, Inc. If you terminlate your employ- ment, your hospitalization will be terminatld at midnight, May 31. 1979. If you contlact us, \ c will advise the procedure to convert your personal policy. Berger Transfer and Storage, Inc. 2N225 Grace Street lombrnrd, Illinois O()n the afternoon of May 23. the picket line was posted on Grace Street in front of the terminal facilities. Pickets walked in a north-south direction across the driveway entrance at a point %where the driveway joins the public right of w'ay. 'The driveway is about 3(0 fet wide at this point and is bordered by grassy bernis on the north and south sides of the pavement. Harris was required to deliver a piece of machinery from the ware- house for a customer so he took a company "straight job," a standard transmission truck, from the parking lot and proceeded to Grace Street by way of the driveway in question. Estimates of his speed vary from a few miles per hour to 2) 25 miles per hour. I credit testimony to the effect that, as Harris approached the line, he applied his brakes in order to avoid an oncoming car which was coming along Grace Street. In the course of braking, the truck "fishtailed" and the rear of it hit picket Terry Most and knocked him into picket Frank Gocha. Harris did not stop but continued on his way. I credit testimony to the effect that, after this incident, Harris told employee Danny Overton that he had hit the pickets both "inten- tionally and unintentionally" Overton asked him what that meant but received no reply. On the evening of May 23, two striking employees re- ceived calls at their respective homes from Company Vice President Frank Goodwin, who had just recently been transferred from the Lombard terminal to Respond- ent's facility in Dallas, Texas. Goodwin called Overton by long-distance telephone about 9 or 10 p.m. He asked Overton what was going on and the latter said that "the guys decided to bring a union in." When Goodwin asked why, Overton replied that the employees had no job se- curity and no backing. Goodwin then asked Overton whether they could work out something with the em- ployees if he flew back to Chicago from Dallas for a meeting. Overton said that it would not do any good be- cause things had gone too far. Goodwin then asked who were the "top guys." in the organizing effort. Overton replied that there were no top guys, and that the entire employee group decided to take action. Goodwin also asked Overton how he personally felt about the union effort. Overton told him that he was prepared to stick with it all the way. even if it meant losing his job. Good- win commented that ()verton would not lose his job but that ermployces at the bottom of the seniority list might lose their jobs. In his long-distance telephone conversation on the same evening with Frank atz, Goodwin aked iatz what was happening concerning the unionization of the terminal. Gatz asked Goodwin if he had talked 'with the officials at the I.omtbard swarehouse and Goodwin replied that he had spoken with Stang, who had informed him that the employees had gone union and were lnow on strike.l oodwin added that lie wvanted to speak directly with Gatz because he thought he could get some straight answers from him. He asked Gatz swhy these events had taken place and Gatz told him that it happened ecause, after Maierhofer took over, the men thought that they needed a union because the were not getting a fair shake. Goodwin asked who was instigating the strike and Gatz replied that he did not know. Goodwin expressed the feeling that it might be Roesecke and Larry York. I-c also suggested that the senior employees get together with him for a meeting and try to work things out with- out a union. Gatz replied that such a meeting would do no good because the men had decided they wanted a union arid they were not going to change their minds. 7 On the following day, Maierhofer summoned Roe- secke, York. Redman, and employee Richard Way from the immediate vicinity of the picket line and began to talk with them. Maierhofer began the conversation by stating that he had only been the general manager of the Lombard terminal for about 3 weeks and asked plaintive- ly, "Why arc you doing this to me?" Roesecke spoke up and assured him that there was nothing personal in the dispute which had just arisen. Maierhofer then asked the employees, "Why can't we get together and talk about this thing?" Roesecke replied that there was nothing to talk about and that all that Maierhofer had to do was to recognize the Union. About 2 p.m. on May 24, Overton received a long-dis- tance call at his home from William Dircks, the president of the Company. I credit Overton's version of the con- versation, namely, that in the course of the discussion Dircks asked him who was the "top man," and who was "running the show" as far as the organizing effort was concerned. Overton replied that it was a group effort. Dircks then asked if they could get together and talk the matter out. Overton said, "No." Dircks asked why and Overton replied that he felt that unionization was the best thing for his family because it provided job security. Dircks then asked why he thought that joining Local 705 meant job security, to which Overton stated that the Union had a grievance procedure in the event an em- ployee was fired. Dircks suggested that the Company might set up a grievance procedure similar to the one provided for in the Local 705 contract and Overton re- fused, saying that he did not think it would work. Dircks persisted, asking if Overton felt they could forget the Union and have a meeting between company manage- ( ioodwlin did not tcify at the hearinlg so tIh versionls f Iht tclc- pholle c yonvcrsations reciltd hby (Ovrton arid Cialz are uncontrdictcd Iin the record 8 BERGER TRANSFER AND STORAGE, INC. ment and the keymen in the organizing effort. Overton said he did not think so because things had gone too far. He added that he was willing to go all the way with the Union, even if it meant getting fired. Dircks said, "That's just what will happen," adding that he would not be strong-armed into recognizing the union. Late in the afternoon of the same day, as Harris was leaving the terminal, he saw York and Roesecke at the picket line and suggested that they get in his car and have a talk. They agreed. Harris began by asking why the employees could not get together and talk about the dispute. Roesecke replied that there was nothing to talk about. Harris told them that the Company's lawyer had informed the Company that the Union had gone about the organizing effort in the wrong way and that it should have submitted the cards to the National Labor Relations Board. Roesecke's reply to that statement was, "What's the difference? Either you are going to recognize the Union or you are not." They then got Overton to join them. Overton told Harris about the conversation that he had just had a few hours before with Dircks and report- ed that Dircks had said that the Company would close the warehouse if the Union came in. Harris had no com- ment except to say that he knew nothing about Dircks' conversation. Harris told the employees that if they pick- eted for more than 30 days the Company would get an injunction to stop the picketing and then they would close the warehouse. Overton replied that the Company could not afford to close the warehouse because it would lose too many accounts if it did. Harris said that the Company could close the warehouse, send the equipment to Minnesota, turn its account over to another company, and collect a booking fee for the business it referred out. Harris asked the men to return to work but they de- clined, saying that they were afraid they would he fired if they did without having the protection of the Union. Harris said that the Company would fire them. Overton then asked Harris if he could give him a legal contract saying that he would not be fired if he came back to work. Harris said there was no way he could provide such a contract. On Sunday afternoon, May 27, Goodwin was back in the Chicago area with his wife. The two of them paid a social call on York at the latter's apartment. During the course of a conversation which ranged over a large number of subjects, Goodwin asked York, "Why do you guys want the Union?" York stated that they were fed up taking orders from Harris and fed up with the way he was treating them. Goodwin wondered aloud whether, if he had still been at the warehouse, the union dispute could have been prevented. York thought that possibly it could have been. Goodwin's wife then asked York who the instigator of the organizing drive was. York said there was no instigator. Goodwin then voiced the opin- ion that Phil Roesecke was the instigator. He asked whether the top men in the organizing campaign would get together with Dircks and discuss their differences. York replied that it was too late for such a move but added that he would pass along Goodwin's request to the other strikers. Goodwin noted in the course of the conversation that the Union could be voted out as well as being voted in. On Monday afternoon, May 29. Respondent sent a telegram over the signature of R. D. Dircks. the chair- man of the board of Respondent, to all of the employees who received the termination telegram of May 23. In the second telegram Dircks said: A wire was sent to you last Wednesday, May 23. without authority. This is to advise that wire is re- sended (sic) and your job is available. On Tuesday, May 29, Goodwin again phoned Gatz long distance from Dallas. During this call, Goodwin asked Gatz why he had not put any enthusiasm in Good- win's request for a meeting between the men and Good- win and Dircks. Gatz informed Goodwin again that the men wanted a union and that a meeting would accom- plish nothing. He said that the men were serious and were going to continue the strike. Goodwin then told Gatz that, if the Union came into the warehouse, the Company would have to go "strictly by the book" and noted that they would discontinue giving occasional company parties. Goodwin added that, .while Gatz would not have to worry, the men at the lofwver end of the seniority roster would lose their jobs because there would not be as much work. On June , at or about 2:30 p.m.. Harris was again in- volved in an altercation at the picket line. Charles Volker, an owner-operator who drives for Berger, and James Miller, a company driver, attempted to leave the Berger premises in Harris' pickup truck. They got to the line, reluctant to cross it, and turned around and parked the truck in the company parking lot. Both men went to the office and Miller emerged with Harris. The police had been summoned, but instead of waiting for them to arrive the two got into Harris' truck and Harris began to drive it toward the picket line. I credit record testimony to the effect that, when Harris arrived at the picket line, he "floored" his accelerator and, in the process, struck Gatz and Mundt who were picketing.9 Harris then drove away. He was later arrested and charged with leaving the scene of an accident. "' On June 15 picketing ended and on June 18 most em- ployees went back to work. On the first day of work fol- lowing the strike, Harris informed Gocha that, since hc vwanted the Union, he would no longer be warehouse foreman and told him to "punch in," meaning that he would be given a job on the seniority roster. His name was placed about 23d on the seniority roster and the result of that placement meant that Gocha rarely worked a 40-hour week. Sometime in December 1979., Maierhofer had a con- versation with employees Salmons and Way concerning the status of the Company. Way asked Maierhofer what would happen if the Union came in. I credit Salmons' testimony to the effect that Maierhofer replied that there were "rumors from Minneapolis," and that the terminal would close if the Union came in. In a later conversation with Way, Maierhofer said that he could not believe that * York claims that he did noI receive the second tlegram 9 I regard testimon in the record that the Iwt injured pickets feigned being struck as contrived and fanciful o He has also been sued by Mundt a, a result of thl, Indcni 9 I)ECISIONS ()F NA'IIONAL L.ABOR RLAI'()NS t()ARI) Dircks would close the terminal since it would not be a profitable move. There is no evidence that he made this later statement to Salmons. II. ANAIYSIS ANI) CONCI USIONS A. Supervisory Issues. 1. The supervisory status of James Stang Stang advertised himself to customers and to Respond- ent's employees as a vice president of the Company, al- though in fact he was not a duly appointed corporate of- ficer. The reason for the use of the title, both verbally and on company calling cards, was that the title often gained him entry to higher officials of prospective cus- tomers than would the title "salesman." Stang is one of three salesmen who work out of the Lombard terminal. He reports to Executive Vice President Robert Dircks and to Maierhofer. He calls on accounts and prospective accounts, makes estimates of moving jobs, and, in con- junction with Maierhofer and Harris, "books jobs," that is, assigns moving jobs to particular days and informs the customer when the moving will take place. His desk is located in an office which includes Maierhofer's desk. Stang works on a commission basis and receives fringe benefits which are accorded to managerial and office personnel. Stang has from time to time interviewed applicants for sales positions and has made recommendations concern- ing their employment. People whom Stang has recom- mended for hire are normally interviewed again by com- pany officials. However, Stang's recommendation against hiring a prospective salesman is normally final. Occasion- ally Stang attends management meetings. He testified that he does not get involved in labor relations. Howev- er, the evidence in this record shows that he became closely involved on the management side in general as to events which took place during the organizing campaign and the strike. I conclude from the above-recited evi- dence that Stang is a supervisor within the meaning of Section 2(11) of the Act. The statements made by him in the presence of Harris echoed Harris' previous state- ments, and were consistent with and supportive of Re- spondent's overall position in resisting unionization. Ac- cordingly, I conclude that the statements made by Stang are properly attributable to Respondent as its agent in fact, even if he lacked formal supervisory status on the occasion when he spoke, because of the implicit ratifica- tion of these statements by Harris on the occasion in question. 2. The supervisory status of Jerry Gocha Jerry Gocha was hired by Respondent in January 1979, and was given the title of warehouse foreman. During the period of time he occupied this position, he was paid a salary which, on the basis of a 40-hour week, approximated the hourly wage of warehousemen and drivers. Unlike the latter, Gocha was assured of 40 hours of employment each week. He was not paid for overtime but there is no evidence that he ever worked overtime. I credit his testimony that he had no power to discipline employees who worked in the warehouse, as evidenced not only by his general statement to this effect, but his recitation of specific instances in which attempts to send malingers home were summarily reversed by Harris. He received the same holidays and vacations as did drivers and also received the same insurance benefits. I also credit his testimony to the effect that he had no role to play in grievances which might arise in the warehouse. Gocha did not hire or fire or recommend that anyone be hired or fired. He did not assign particular employees to particular dispatches as this task was performed each day by Harris when he made up the daily assignment sheet. Gocha's job was to see that trucks were properly loaded and that employees left with the trucks to which they were assigned. Such assignments did not involve the use of independent judgment. As his job duties do not fall within the statutory definition of a supervisor set forth in Section 2(11) of the Act, I find that he was a nonsupervi- sory employee, despite the title which was given to him when he was hired. Accordingly, Gocha was protected in his relationship with Respondent by Section 7 and 8 of the Act. B. Other Ivsues I. The employment status of Jesse L. Morris and Kurt Koontz Respondent denies the General Counsel's contention that Jesse L. Morris and Kurt Koontz are properly in- cludable in the bargaining unit at the time Rzewnicki made a demand for recognition and that their cards should not be counted in determining the Union's major- ity status. Their inclusion vel non would not affect the Union's majority status but a determination of their em- ployment status in mid-May might affect their entitle- merit to benefit by the remedy to be recommended in this case, so such a determination should be made. Both men were in that group of part-time employees whose names did not regularly appear on the seniority or work list (Harris denies that the list was a "seniority" list). When work was available, Harris wrote in their names at the bottom of the list and assigned particular tasks to them. During the period from January 1, until May 17, 1979, Morris worked anywhere from 0 hours per week to 40 hours per week. In all but 3 weeks during that span of time he performed some labor for Respondent. He did not work from May 18 through June 7 or thereafter. However, during most of that time the strike was in progress and Morris participated in the picketing. Morris received Respondent's May 23 tele- gram notifying him to report for work on May 24 upon penalty of being regarded as a voluntary quit. He also re- ceived Respondent's telegram of May 28 rescinding the original telegram informing him that his job was in jeop- ardy. Its contention is based solely upon the factual premise that, after May 18, Morris never presented him- self for work. The above-recited facts make it clear that Morris was, on May 23, a regular part-time employee of Respondent. Accordingly, he should be included as a member of the bargaining unit and should be eligible for any remedial benefits which might flow from such a de- termination. 10 BERGER TRANSFER AND STORAGE, INC Kurt Koontz had a similar position with Respondent. Between January !9, and May 18, 1979, Koontz worked some hours during each week. These hours ranged from 7 to 36 hours per week. He received the May 23 and May 28 telegrams referred to above and it is undisputed that he never formally quit. Like Morris, Koontz did not return after the strike or make himself available for work during the strike. As in the case of Morris, the facts re- cited above make it clear that Koontz was also a regular part-time employee on May 23, 1979, and should be in- cluded as a member of the bargaining unit eligible for any remedial benefits which might flow from this deter- mination. 2. The violation of Section 8(a)(5) The parties agree that a unit of all full-time and regu- lar part-time local drivers, over-the-road drivers, ware- housemen, and helpers employed by Respondent at its Lombard, Illinois, warehouse and terminal, with the usual exceptions, constitute an appropriate unit for col- lective bargaining. As found above, on May 29, Re- spondent had secured 28 signed designation cards from the 42 persons employed in that unit on that date. Ac- cordingly, it was the majority representative of the em- ployees in that unit when Rzewnicki demanded recogni- tion from Maierhofer and the latter declined the request. 3. The layoffs of employees on May 21 and May 22 During the period of time preceding the first 2 days of union organizing activity, Respondent normally em- ployed 25 to 30 employees each working day. While its employee complement might fluctuate from day to day, most of its employees worked most of the time. These 2 days were the first time in the memory of those testify- ing on the point that half of the work force was unas- signed. During this same period of time, Harris was taking pains to provide maximum work opportunity to all employees, even if this meant stretching out work, be- cause he wanted them to be available during the summer months rather than go to work for some other employer. Early on May 21, Harris learned of the organizing ac- tivity before they actually arrived at his office and began to make up the job list for that day. What emerged both on May 21 and May 22 was the employment of about half Respondent's full complement of employees. There is no substantive record evidence to support any conten- tion that work was unavailable on those days. There are threats in the record, made both by Harris and Stang, that if the Union came in they would take reprisal on employees by refraining from booking jobs on Monday and Tuesday (May 21 and 22 were a Monday and Tues- day). There are also two admissions in the record from credited witnesses that Harris stated that he was not using Salmons because of the union activity which was taking place and another statement, made in Redman's presence over the telephone, that he had work available for "30 guys" but was not using them all because of the organizing effort which was taking place. These admis- sions, coupled with the absence of any other plausible explanation, establish conclusively that a substantial number of employees were laid off on Monday and Tuesday of the week of May 21 because of the union ac- tivities which were taking place and that such layoffs constitute a violation of Section 8(a)(1) and (3) of the Act. The identities of these persons and the amounts due and owing to them in backpay can best be left to the compliance stage of this proceeding. 4. Independent violations of Section 8(a)(1) committed before 11 a.m. on May 23 Before the Union changed its picket signs on May 23 at 11 a.m. from picketing for recognition to picketing to protest unfair labor practices, Respondent violated Sec- tion 8(a)(1) of the Act by the following acts and conduct recited in detail above: (a) Harris' statement to Salmons that Salmons was not going to be assigned work on May 21 because of the union activity which was taking place. (b) Harris' statement later in the day in the presence of Redman that he had work for 30 employees but was not going to put them to work because of the union activity that was taking place. (c) Maierhofer's interrogation of Gatz in the ware- house concerning the reason for the organizing campaign and his threat to Gatz, uttered in the course of the same conversation, that unionization would result in less work and discharges for lower seniority employees. (d) Maierhofer's conversation in his office later in the day in which he asked Wallen and Busse why the em- ployees were organizing, asked them to disclose the names of employees who were interested in bringing the Union into the warehouse, created the impression of sur- veillance by making notes on a list of employees he was holding as he was questioning Wallen and Busse, and so- liciting grievances with an implied promise that they would be remedied. On this occasion, Maierhofer also stated that he would systematically interrogate all other employees concerning their union sympathies. (e) The interrogation of employees in the drivers' room by Stang and by Harris concerning why employees were organizing a union, and the threats uttered by both of them on this occasion that if the Union came in they would reduce job opportunities by refraining from "booking jobs" on Mondays and Tuesdays. (f) Maierhofer's interrogation of Stroh in his office on May 22 when he asked him why employees were joining a union. (g) Harris' interrogation of Overton on the morning of May 23 as to what employees were doing outside the plant, whether Overton had signed a card, whether em- ployees were planning a strike, and whether Overton would go on strike. (h) About 10:30 in the morning, at a meeting of pickets called by Maierhofer in the company parking lot, Maier- hofer told them that, if they did not report for work within the relatively short time (by 11 a.m.), they would be terminated and their insurance would be canceled. This statement constitutes a threat of reprisal against em- ployees for engaging in concerted protected activity. 11 DECISIONS OF NATIONAI. LABOR RELATIONS BOARD[ 5. The conversion of the strike into an unfair labor practice strike The existence of the unfair labor practices recited above took place prior to the time the Union changed its picket sign from one demanding recognition to one pro- testing the commission of unfair labor practices. The change in picket signs took place within minutes after Maierhofer uttered his threat to discharge employees. There can be no doubt that this threat was what trig- gered the change of picket signs and, with that change. an alteration in the purpose of the strike which was then in progress. Accordingly, I conclude that, from the late morning of May 23 until it was discontinued in mid-June, the strike of Berger's employees was an unfair labor practice strike. 6. Independent violations of Section 8(a)(l) occurring after the conversion of the strike to an unfair labor practice strike (a) On the afternoon of the first day of the strike, Harris drove a company truck through the picket line with such speed and disregard for the safety of pickets that he hit two pickets who were patrolling the front of the plant. He did not stop to inquire about their safety but kept on going as soon as the street became clear of oncoming traffic. He later said that he hit pickets Most and Gocha both "intentionally and unintentionally." Such a statement discloses beyond cavil, the manner in which he operated the truck on the occasion in question. I conclude that, by this act, Harris assaulted two pickets with a company vehicle because of their union activities and that this assault constitutes a violation of Section 8(a)(I ) of the Act. (b) During the course of a long-distance telephone conversation which took place on the same afternoon, Company Vice President Goodwin interrogated Overton concerning the reasons for which employees were engag- ing in union activities, who were the "instigators" of union activities, and how Overton personally felt about unionization. Such interrogation constitutes a violation of Section 8(a)(l) of the Act. In the course of the same con- versation, Goodwin uttered a threat that unionization would bring about the discharge of employees holding low seniority. This threat constitutes a violation of Sec- tion 8(a)(l) of the Act. Goodwin also asked Overton to arrange a meeting, the obvious purpose of which would be to solicit grievances from employees so that Respond- ent could adjust said grievances and thereby undermine the organizational campaign and the strike which was then in progress. Such a request violates Section 8(a)(l) of the Act. (c) On the same day, Goodwin also placed a long-dis- tance telephone call to Gatz, in the course of which he interrogated Gatz as to the reasons for the union activity which was taking place and the identity of the instiga- tors. These questions constitute a violation of Section 8(a)(1) of the Act. When he suggested to Gatz that York and Roesecke were the instigators, he was thereby creat- ing an impression that their union activities were the sub- ject of company surveillance in violation of Section 8(a)(l) of the Act. Goodwin's request to Gatz to set up a meeting of company officials and strike leaders consti- tutes a solicitation of grievances, for the reasons stated above relative to the Goodwin-Overton conversation, and violates Section X(a)(l) of the Act. (d) Maierhofer's statement to Roesecke, York, Redman, and Way the following day, "Why are you doing this to me?" is more of an expression of hurt rather than a request for information so I would not regard it as coercive interrogation. His further remarks, in which he requested them to set up a meeting to dis- cuss their grievances, were a solicitation of grievances which violates Section 8(a)(1) for the reasons set forth above relating to the Goodwin conversations. (e) Dircks' long-distance phone call to Overton, in which he interrogated Overton as to the identity of strike leaders and questioned Overton as to his reasons for joining the strike, constitutes a violation of Section 8(a)(1) of the Act. Dircks' threat during the same con- versation to fire employees is an obvious violation of Section 8(a)(l) of the Act. Dircks also violated Section 8(a)(1) of the Act on that occasion by asking Overton to assist in setting up a meeting between strike leaders and company officials to discuss a means of working out dif- ferences without the intervention of the Union and by suggesting the establishment of a grievance procedure similar to the one provided for by the Local 705 contract but without the agency of Local 705. (f) Late in the afternoon of the same day, Harris made a suggestion to a number of striking employees who were meeting in his car for a meeting between strikers and company officials to work out their differences with- out the intervention of the Union. Such a request consti- tutes a violation of Section 8(a)(1) of the Act because it amounts to a solicitation of grievances carrying with it an implied promise of redress, Harris' protestations to the contrary notwithstanding. During the same conversation, Harris also threatened the employees that the Company would close the warehouse and send the equipment back to Minnesota if the Union came in. This threat is a seri- ous violation of Section 8(a)(1) of the Act. (g) On the following Sunday afternoon, in the course of a social visit, Goodwin interrogated York concerning the reason the employees were engaging in union activi- ties. This interrogation violates Section 8(a)(l) of the Act. In the course of the same conversation he also asked York to assist in putting together a meeting of company officials and strike leaders to discuss the prob- lems which gave rise to the organizing campaign and the strike. This request constitutes a solicitation of griev- ances with an implied promise of redress which violates Section 8(a)(1) of the Act. During the course of the afternoon, Mrs. Goodwin asked York to disclose the identity of the instigators of the union effort. Mrs. Good- win is not per se an agent of Respondent but she asked the question in the presence of a high company official and any response adduced by the question would consti- tute a disclosure of information to that official. There was an implied ratification of her action by her husband, so the question constitutes interrogation in violation of Section 8(a)( ) of the Act. 12 HFR(iliR I RANSI1R .1ANI) S1()IRA(i. INC. (h) O)n May 29, (ioodwin again phoned Ciatz for the purpose of urging Gatz to arrange a meeting hbetween strikers and company officials i which they could thrash out their differences Such a request constitutes one m)ore solicitation of grievances w ith an implied promise of re- dress and is a violationl of Section X(a)( ) of the Act. Goodwin's threat during this conversationt that the Colm- pany would go "strictly by the hook." in the e\cii of unionization, is a threat which violates Section 8(a)( 1) of the Act anid his statemenii that the men at the hottomrn of the seniority list would lose their jobs as a result of unionization is a threat w.hich violates Scclion 8(a)(l) of the Act. (i) On June 6. HIarris again drove a truck through the picket line with disregard for the safcl of the elployees who ,were picketing. O()n this occasion, hie not only struck two pickets but apparently caused personal injuries ie- cessitatitig hospitalization. There is a claim by Respond- ent that the pickets were in a inhebriated conditioni aid were blocking the exit from the cornpan parking lot. There is also evidence that the DuPagc County police had been summoned. Rather than call upon a colmpaiI security guard who was standing by to rectify an> block- age of the driveway or await the arrival of the police, Harris came drivinig through the line with the same abandon that hce had displayed on May 23. It is clear that he desired another physical confrontation with the pick- ets and took this means of bringing it about. His action constitutes a violation of Section 8(a)( ) of the Act. 0) In December 1979, in response to a question posed to him by an employee, Maicrhofer repeated a rumor to the effect that the Lombard vwarehouse would close down in the event of unionization. Whether the rumor came from the main office in Minneapolis or was merely scuttlebutt obtained from company drivers, the reitcr- ation of this rumor by the highest compani official at the I.ombard terminal constitutes a threat by Respondet lit violation of Section 8(a)(1) of the Act. The fact that he may have retracted his statement at some later time in the presence of one of the individuals who heard the original threat does not detract from its illegal character. 7. The discharge telegram of May 23 On the evening of the first day of the strike, Maier- hofer sent a telegram to each of the 33 striking employ- ees in which he told them that, if they did not return to work by 8 a.m. the following morning, they would be considered as voluntary quits and their health insurance would be terminated at the end of the month. When this telegram was sent, the strikers in question were unfair labor practice strikers and, under long-established princi- ples, they were entitled to reinstatement upon reques at the end of the strike. The discharge of unfair labor prac- tice strikers is, in and of itself, an unfair labor practice. By taking such action Respondent herein violated Sec- tion 8(a)(1) and (3) of the Act. The fact that the dis- charges were rescinded 5 days later does not alter the fact that a violation was committed. The most that the second telegram could accomplish would be o affect a remedy pertaining to the job status of the strikers. X. I he demotioln of JerrN (iocha U'hein thl strike ended and Goclia returnedl to %xkerk. lie as ilnforilled h I larris thal;l he ould no lotger he lcadniila; i llhe k ;lrchclusL. a job i .hich a 40-1hour \vcck s, ,as guaranteed to him, but hie would he "oil the clock" arid ould thierch be employed il order f se- niority wheni work , as available. In fact, lie was placed abhout 24th on the scniorits list aid rarely ,olrked a full week after lie returnied. ilarris made no sec ret of tlie fact t;l this lI cthan;gc ' as beillg effecLtluatCd because (iochli supportcd the nitio Sch a discriiiatlion in hire atid tcnutli because of untiOl actiit) violates Sectioni (al)() anid (3) of the Act Uponi the f'oregoing findings of facl. 11d 1 upoi1 tlhe cillire record hereill considered as a 1hole,1 I make the folloxiig CoN( I s(io)Ns o( . . Respondcnt, Bcrger Transfer anid Storage, Inec, is nov. aid at all tiies matellrial hlereti has been ant cmplo - er engaged in colnlerce xitlill tile meaning of' Section 212). (), and (7) of the Act. 2. ruck I)riscrs. ()ii I)rixrs. [:illiiig Slation and 'lat- fornl Workers lUnioill. ocal 7()5, Inllrnational rother- hood f Teamnsters, Chauffeurs, Warchoutsemen and Helpers of America (the Union), is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time local and over- tlie-road drivers, warehousemLen. and helpers employed by Respondent at its Lombard Illinois, terminal ad sareliouse, exclusix e of guards, salesmen, office clerical employees, and superxisors withi tilhe meaninlg of the Act, constitute a unit appropriate for collective bargaini- ing within the meatiing of Section 9(b) of the Act. 4. Since o or about Mayv 23 1974, the lnion hereii has been the exclusive represenlati,e of all the eniploy- ees i the unit fou(nd appropriate in Conclusion of 1.ass 3, for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing to recognize and bargain collectively with the Unioni as the exclusive collective-bargaining representative of its employees in the hargaiiiing unit found appropriate ii Conclusion of L.aw 3 herein, Re- spondet has violated Section 8(a)(5) of the Act. 6. By laying off a number of its employees on May 21 and 22 because of their membership in and sympathy with the Union, Respondent herein has violated Section 8(a)(3) of the Act. 7. By discharging Guy Anderson, Ben Brozoska, Al Brunke, Tom Budiik, Dennis Busse, Bill Davis, Cameron Duncan, Mark Eurek, Ed Finley, Randy Franklin. Frank Catz, Dennis Giese Jerry Gocha, Mike Gunnells, Kurt Koontz, Hill McDoiald, Hill Moore, Tony Morawski. Jessie Morris, Terry Most, Don Mundt. Danny Overton, Dave Redman, Phil Roesecke, Wayne Rose, Ron Salm- ons, Paul Skipworth, Don Smith, Jerry Stroh, Garry Wallen, Dick Way, Don York, and Larry York because of their membership in and sympathy with the Unioni and because they engaged in ill unfair labor practice strike. Respondent herein has iolatcd Section (a)(3) of the Act. I)lCISIONS OF NATIONA. L.AB()R REI.ATIONS BOARD 8. By demoting Jerry Gocha because of his member- ship in and sympathy with the Union, Respondent herein violated Section 8(a)(3) of the Act. 9. By the acts and conduct set forth above in Conclu- sions of Law 5, 6, 7, and 8, by coercively interrogating employees concerning their union activities and the ac- tivities of the employees, by soliciting grievances from employees with the implied promise of redress, by creat- ing in the minds of employees the impression that their union activities are the subject of company surveillance, by assaulting employees on the picket line with motor vehicles, by threatening to close the warehouse if the Union came in, by threatening to reduce job opportuni- ties and to discharge employees with low seniority if the Union came in, by telling employees they were being laid off because of their union activities and the union ac- tivities of other employees, and by threatening to dis- charge employees in reprisal for union activities or unless they abandon their strike and returned to work, Re- spondent herein violated Section 8(a)(l) of the Act. 10. The aforesaid unfair labor practices have a close, intimate, and adverse effect on the free flow of com- merce within the meaning of Section 2 (6) and (7) of the Act. TIni REM tI)Y Having found that Respondent herein has engaged in unfair labor practices, I will recommend that it be re- quired to cease and desist therefrom and to take certain affirmative actions designed to effectuate the purposes and policies of the Act. Since the independent violations of Section 8(a)(1) found herein are repeated and perva- sive, and evidence an attitude on the part of this Re- spondent to behave in total disregard of its statutory ob- ligations, I will recommend to the Board a so-called broard 8(a)(1) order designed to suppress any and all vio- lations of that section of the Act. Hickmot Foods, Inc., 242 NLRB 1357 (1979). The recommended Order will also provide that Respondent be required to offer full and immediate reinstatement to all of the discriminatees named or referred to in Conclusions of Law 6, 7, and 8 and to make them whole for any loss of earnings which they may have sustained by reason of the discrimination practiced against them in accordance with the Woolworth formula," with interest thereon at the adjusted prime rate used by the Internal Revenue Service for the com- putation of tax payments. Florida Steel Corporation, 231 NLRB 651 (1977); Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). The General Counsel has requested, inter alia, a so- called Gissel remedy which would require Respondent to recognize and bargain with the Union as the representa- tive of its Lombard truckdrivers and warehousemen. In this case, as soon as the Union came on the scene, Re- spondent engaged in a campaign of wholesale intimida- tion and coercion of its employees and left no stone un- turned in an effort to undermine the Union's organizing drive. In addition to repeated attempts by high company officials to hold rump meetings with employees for the purpose of adjusting grievances and dissipating the lo Fi W Wolo/worth Company, 90 NLRH 289 (1950) Union's organizing strength, Respondent, by its officials, threatened employees with layoffs and discharge, assault- ed employees on the picket line with motor vehicles, fired 33 unfair labor practice strikers, threatened to close the warehouse and/or lay off employees in reprisal for unionization, and repeatedly interrogated employees con- cerning their own union activities and the union activi- ties of others. It is hard to imagine any conduct on the part of an employer which could more thoroughly deci- malte an organizing drive or render a Board election meaningless, and it is idle to suggest that the effects of this massive illegal effort have not lingered on. The Board ad the Seventh Circuit have issued Gisel orders for conduct far more restrained than what has been found in this case and I have no hesitance in recom- mending such a remedy here. N.L.R.B. v. Henry Colder Company, 447 F.2d 629 (7th Cir. 1971); N.L.R.B. v. The Copps Corporation, 458 F.2d 1227 (7th Cir. 1972); :. L.R.B. v. Kostel Corp. d/b/a Big Ben Shoe Store, 440 F.2d 347 (7th Cir. 1971); .L.R.B. v. Brown Specialty Company, 436 F.2d 372 (7th Cir. 1971); .L.R.B. v. Texaco, Inc., 436 F.2d 520 (7th Cir. 1971), cert. denied 409 U.S. 1008 (1972); N.L.R.B. v. Self-Reliance Ukranian American Cooperative Association, Inc., d/b/a Certified Foods, 461 F.2d 33 (7th Cir. 1972); Townhouse TV & Ap- pliances, Inc. v. N.L.R.B., 531 F.2d 826 (7th Cir. 1976); Walgreen Co. v. N.L.R.B., 509 F.2d 1014 (7th Cir. 1975). I will also recommend that Respondent be required to post the usual notice, advising its employees of their rights and of the results in this case. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER' 2 The Respondent, Berger Transfer and Storage, Inc., Lombard, Illinois, its officers. agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Creating in the minds of employees the impression that their activities are the subject of company surveil- lance. (b) Threatening employees with closing the warehouse if the employees select a union as their bargaining agent. (c) Threatening to lay off or fire employees in reprisal for their union activities or unless they abandon their strike and return to work, and telling employees that they are being laid off because of their union activities or the union activities of other employees. (d) Coercively interrogating employees concerning their union activities and the union activities of other em- ployees. 12 In the event no excepionls arre iled as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 10248 of the Rules and Regulations, be adopied hy he Bottard arld become its findings, conclusions, aid Order and all objections thereto shall be deemed waived for all purposes 14 BERGER IRANSFER AND STORAGE. INC (e) Soliciting grievances and attempting to arrange meetings of employees to solicit grievances with the im- plied promise of redress. (f) Assaulting employees who are engaging in union activities. (g) Threatening to reduce job opportunities and layoff low seniority employees if the warehouse became union- ized. (h) Discouraging membership in or activities on behalf of Truck Drivers, Oil Drivers, Filling Station and Plat- form Workers Union, Local 705, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging, laying off, or demoting employees or other- wise discriminating against them in their hire or tenure. (i) Refusing to recognize and bargain collectively with the aforementioned labor organization as the exclusive collective-bargaining representative of all of Respond- ent's full-time and regular part-time local and over-the- road drivers, warehousemen, and helpers employed at Respondent's Lombard, Illinois, terminal and warehouse, exclusive of guards, salesmen, office clerical employees, and supervisors as defined in the Act. (j) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Offer Guy Anderson, Ben Brozoska, Al Brunke, Tom Budnik, Dennis Busse, Bill Davis, Cameron Duncan, Mark Eurek, Ed Finley, Randy Franklin, Frank Gatz, Dennis Giese, Jerry Gocha, Mike Gunnels, Kurt Koontz, Bill McDonald, Bill Moore, Tony Morawski. Jessie Morris, Terry Most, Don Mundt, Danny Overton, Dave Redman, Phil Roesecke, Wayne Rose, Ron Salm- ons, Paul Skipworth, Don Smith, Jerry Stroh, Garry Wallen, Dick Way, Don York, Larry York, and all em- ployees who were laid off on May 21 and May 22, as found herein, full and immediate reinstatement to their former or substantially equivalent employment, without prejudice to their seniority or other rights previously en- joyed, and make them whole for any loss of pay or bene- fits suffered by them by reason of the discrimination found herein, in the manner described above in the sec- tion entitled "The Remedy." (b) Recognize and, upon request, bargain collectively in good faith with Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local 705, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, as the exclusive collec- tive-bargaining representative of all full-time and regular part-time local and over-the-road truck drivers, warehou- semen, and helpers employed at Respondent's Lombard, Illinois, terminal and warehouse, exclusive of guards, salesmen, office clerical employees, and supervisors as defined in the Act. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying all pay- roll and other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at Respondent's place of business at Lombard, Illinois, copies of the attached notice marked "Appen- dix.":a Copies of said notice, on forms provided by the Regional Director of Region 13, after being duly signed by a representative of Respondent, shall be posted imme- diately upon receipt thereof and shall be maintained by Respondent for 60 consecutive days thereafter. in con- spicuous places, including all places where notice to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. " In the ceni this Order is enforced by a Judgmenlt of the nited Statc Crl of Appeals, the ,% ords in the nolice reading "Posted h' ()rder of he National abor Relations Board" shall read "P't'osld 'ursu- int to a Judgment of the nited States Court of Appeals nforing ()rder o the Nalional ahor Rel.ations Boa.rd APPENDIX NO I CI. To EMPI OY:i S PosTi l) iYi ORI)I-R OF 1 Hil NA IIONAi LABOR Rlt ArTtONS OARI) An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. Wt Wt11 Not coercively interrogate employees concerning their union activities or the union activi- ties of other employees. Wl- WI. NOI create in the minds of our employ- ees the impression that their union activities are the subject of company surveillance. WE WIl.l. NOT threaten to close the warehouse or to fire or layoff employees if they select the Union as their bargaining agent or if they fail to abandon their strike. Wr wl I NOT tell employees that they are being laid off because of their union activities or the union activities of other employees. WE Wll . NOT solicit grievances and attempt to arrange meetings for the purpose of soliciting griev- ances with the implied promise that those griev- ances will be adjusted. Wr. wll[ NOT assault employees because they are engaging in union activities. VWE WI[ I NOT threaten to reduce job opportuni- ties and to lay off employees with low seniority be- cause they are engaging in union activities. VE Wi111 . NOT discharge, lay off, or demote em- ployees or otherwise discriminate against them in their hire or tenure in order to discourage their sup- port of or activities on behalf of Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. 1 5 DFICISI()NS ()F NATI(ONAI LABR R l A FIONS BOARD WIl Wlli NOI, by any means or in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. These rights include the right to form, join, or assist labor orga- nizations. to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for their mutual aid and protection. W willt i recognize and, upon request, bargain collectively in good faith with Truck rivers, Oil Drivers, Filling Station and Platform Workers Union, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hlelpers of America, as the exclusive collective-bargaining representative of all the full-time and regular part- timc local and over-the-road drivers, warehouse- meii. and helpers, employed at our Lombard, Illi- nois, terminal and warehouse, exclusive of guards, salesmen, office clerical employees and supervisors as defined in the Act. Wi w.i offer full and immediate reinstatement to the 33 employees named in the unfair labor prac- tice complaint in this case and to any others who were laid off on May 21 and May 22 to their former or substantially equivalent employment, and Wli wit make them whole for any loss of pay which they have suffered by reason of the discrimination practiced against them, with interest. BI.R(;GI R TRAN.NSIIR ANI) SIOR: \(Id INC. 16